Guarantee Agreement between Nexity Financial Corp and Wilmington Trust


 Exhibit 10.3 
 GUARANTEE AGREEMENT 
 NEXITY FINANCIAL CORPORATION 
 JUNE 20, 2008 






 TABLE OF CONTENTS 
  


			
	 ARTICLE I DEFINITIONS AND INTERPRETATION
	  	1
		
	 SECTION 1.1    DEFINITIONS AND INTERPRETATION
	  	1
		
	 ARTICLE II TRUST INDENTURE ACT
	  	4
		
	 SECTION 2.1    TRUST INDENTURE ACT; APPLICATION
	  	4
	 SECTION 2.2    LISTS OF HOLDERS OF SECURITIES;
GUARANTEE TRUSTEE AS CREDITOR
	  	4
	 SECTION 2.3    REPORTS BY THE GUARANTEE TRUSTEE
	  	8
	 SECTION 2.4    PERIODIC REPORTS TO GUARANTEE TRUSTEE
	  	9
	 SECTION 2.5    EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT
	  	11
	 SECTION 2.6    EVENTS OF DEFAULT; WAIVER
	  	11
	 SECTION 2.7    EVENT OF DEFAULT; NOTICE
	  	11
		
	 ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
	  	11
		
	 SECTION 3.1    POWERS AND DUTIES OF THE GUARANTEE
TRUSTEE
	  	11
	 SECTION 3.2    CERTAIN RIGHTS OF GUARANTEE TRUSTEE
	  	13
	 SECTION 3.3.   NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF GUARANTEE
	  	15
		
	 ARTICLE IV GUARANTEE TRUSTEE
	  	15
		
	 SECTION 4.1    APPOINTMENT, REMOVAL AND RESIGNATION OF
GUARANTEE TRUSTEE
	  	15
	 SECTION 4.2    GUARANTEE TRUSTEE; ELIGIBILITY
	  	15
		
	 ARTICLE V GUARANTEE
	  	16
		
	 SECTION 5.1    GUARANTEE
	  	16
	 SECTION 5.2    WAIVER OF NOTICE AND DEMAND
	  	16
	 SECTION 5.3    OBLIGATIONS NOT AFFECTED
	  	17
	 SECTION 5.4    RIGHTS OF HOLDERS
	  	17
	 SECTION 5.5    GUARANTEE OF PAYMENT
	  	18
	 SECTION 5.6    SUBROGATION
	  	18
	 SECTION 5.7    INDEPENDENT OBLIGATIONS
	  	18
		
	 ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION
	  	18
		
	 SECTION 6.1    LIMITATION OF TRANSACTIONS
	  	18
	 SECTION 6.2    RANKING
	  	19
		
	 ARTICLE VII TERMINATION
	  	19
		
	 SECTION 7.1    TERMINATION
	  	19
		
	 ARTICLE VIII INDEMNIFICATION
	  	20
		
	 SECTION 8.1    EXCULPATION
	  	20
	 SECTION 8.2    INDEMNIFICATION
	  	20
		
	 ARTICLE IX MISCELLANEOUS
	  	21
		
	 SECTION 9.1    SUCCESSORS AND ASSIGNS
	  	21
	 SECTION 9.2    AMENDMENTS
	  	21
	 SECTION 9.3    NOTICES
	  	21
	 SECTION 9.4    BENEFIT
	  	22
	 SECTION 9.5    GOVERNING LAW
	  	22
	 SECTION 9.6    COUNTERPARTS
	  	22

  

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 GUARANTEE AGREEMENT 
 This GUARANTEE AGREEMENT (the “Guarantee”), dated as of June 20, 2008, is executed and delivered by Nexity Financial Corporation, a Delaware corporation (the “Guarantor”), and Wilmington Trust
Company, a Delaware banking corporation, as trustee (the “Guarantee Trustee”), for the benefit of the Holders (as defined herein) from time to time of the Preferred Securities (as defined herein) of Nexity Capital Trust III, a Delaware
statutory business trust (the “Issuer”). 
 WHEREAS, pursuant to an Amended and Restated Trust Agreement (the “Trust
Agreement”), dated as of June 20, 2008, among the trustees of the Issuer, the Guarantor, and the holders from time to time of undivided beneficial interests in the assets of the Issuer, the Issuer (i) is issuing on the date hereof up
to 10,000 preferred securities, having an aggregate liquidation amount of up to $10,000,000, such preferred securities being designated the Floating Rate Preferred Securities (collectively, the “Preferred Securities”). 
 WHEREAS, as incentive for the Holders to purchase the Preferred Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Guarantee, to pay to the Holders of the Preferred Securities the Guarantee Payments (as defined below). The Guarantor agrees to make certain other payments on the terms and conditions set forth herein. 
 NOW, THEREFORE, in consideration of the purchase by each Holder of Preferred Securities, which purchase the Guarantor hereby acknowledges shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of the Holders. 
 ARTICLE I 
 DEFINITIONS AND INTERPRETATION 
 SECTION 1.1
Definitions and Interpretation 
 In this Guarantee, unless the context otherwise requires: 
 (a) capitalized terms used in this Guarantee but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1;

 (b) terms defined in the Trust Agreement as of the date of execution of this Guarantee have the same meaning when used in this Guarantee
unless otherwise defined in this Guarantee; 
 (c) a term defined anywhere in this Guarantee has the same meaning throughout; 
 (d) all references to “the Guarantee” or “this Guarantee” are to this Guarantee as modified, supplemented or amended from time to
time; 
  

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 (e) all references in this Guarantee to Articles and Sections are to Articles and Sections of this
Guarantee, unless otherwise specified; and 
 (f) a reference to the singular includes the plural and vice versa. 
 As used in this Guarantee Agreement, the terms set forth below shall, unless the context otherwise requires, have the following meanings: 
 “Affiliate” has the same meaning as given to that term in Rule 405 under the Securities Act of 1933, as amended, or any successor rule
thereunder. 
 “Business Day” means any day other than a Saturday or a Sunday, or a day on which banking institutions in the
City of New York, Wilmington, Delaware or Birmingham, Alabama are authorized or required by law or executive order to close. 
 “Common Securities” means the securities representing common undivided beneficial interests in the assets of the Issuer. 
 “Corporate Trust Office” means the office of the Guarantee Trustee at which the corporate trust business of the Guarantee Trustee shall, at any particular time, be principally administered, which office at the date of
execution of this Agreement is located at Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration. 
 “Covered Person” means any Holder or beneficial owner of Preferred Securities. 
 “Event of Default” means a default by the Guarantor on any of its payment or other obligations under this Guarantee; provided, that
except with respect to a default in payment of any Guarantee Payments, the Guarantor shall have received notice of default from the Guarantee Trustee and shall not have cured such default within thirty (30) days after receipt of such notice.

 “Guarantee Payments” means the following payments or distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by the Issuer: (i) any accumulated and unpaid Distributions (as defined in the Trust Agreement) that are required to be paid on such Preferred Securities to the extent the Issuer has funds on hand
legally available therefor at such time, (ii) the prepayment price, including all accumulated and unpaid Distributions to the date of prepayment (the “Prepayment Price”) to the extent the Issuer has funds on hand legally available
therefor at such time, with respect to any Preferred Securities called for prepayment by the Issuer, and (iii) upon a voluntary or involuntary termination and liquidation of the Issuer (other than in connection with the distribution of Notes to
the Holders in exchange for Preferred Securities as provided in the Trust Agreement), the lesser of (a) the aggregate of the liquidation amount and all accumulated and unpaid Distributions on the Preferred Securities to the date of payment, to
the extent the Issuer has funds on hand legally available therefor, and (b) the amount of assets of the Issuer remaining available for distribution to Holders in liquidation of the Issuer after satisfaction of liabilities to creditors of the
Issuer in accordance with applicable law. 
  

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 “Guarantee Trustee” means Wilmington Trust, until a Successor Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this Guarantee and thereafter means each such Successor Guarantee Trustee. 
 “Holder” shall mean any holder, as registered on the books and records of the Issuer, of any Preferred Securities; provided, however, that, in determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, “Holder” shall not include the Guarantor or any Affiliate of the Guarantor. 
 “Indemnified Person” means the Guarantee Trustee, any Affiliate of the Guarantee Trustee, or any officers, directors, shareholders, members, partners, employees, representatives, nominees, custodians
or agents of the Guarantee Trustee. 
 “Indenture” means the Indenture dated as of June 20, 2008, between the Guarantor
(the “Note Issuer”) and Wilmington Trust, as trustee, pursuant to which the Notes are to be issued to the Property Trustee of the Issuer. 
 “Majority in liquidation amount of the Preferred Securities” means a vote by Holder(s) of Preferred Securities, voting separately as a class, of more than 50% of the aggregate liquidation amount (including the stated amount
that would be paid on prepayment, liquidation or otherwise, plus accumulated and unpaid Distributions to the date upon which the voting percentages are determined) of all Preferred Securities. 
 “Notes” means the series of subordinated debt securities of the Guarantor designated the Floating Rate Junior Subordinated Deferrable
Interest Notes due July 1, 2038 held by the Property Trustee (as defined in the Trust Agreement) of the Issuer. 
 “Officers’ Certificate” means, with respect to any person, a certificate signed by two of the following: the Chairman, a Vice Chairman, the Chief Executive Officer, the President, a Vice President, the Controller, the
Secretary, an Assistant Secretary, the Treasurer or Assistant Treasurer of the Guarantor. Any Officers’ Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee shall include: 
 (a) a statement that each officer signing the Officers’ Certificate has read the covenant or condition and the definitions relating thereto;

 (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the
Officer’s Certificate; 
 (c) a statement that each such officer has made such examination or investigation as, in such officer’s
opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and 
  

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 (d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been
complied with. 
 “Other Notes” means all junior subordinated notes issued by the Guarantor from time to time and sold to
trusts to be established by the Guarantor (if any), in each case similar to the Issuer. 
 “Other Guarantees” means all
guarantees hereafter issued by the Guarantor with respect to preferred securities (if any) similar to the Preferred Securities issued by other trusts to be established by the Guarantor (if any), in each case similar to the Issuer. 
 “Person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. 
 “Responsible Officer” means, with respect to the Guarantee Trustee, any officer assigned to the Corporate Trust Office with direct
responsibility for administration of the Trust, including any Managing Director, Vice President, Assistant Vice President, Assistant Treasurer, Assistant Secretary or any other officer of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated officers and also means, with respect to a particular matter, any other officer to whom such matter is referred because of that officer’s knowledge of and familiarity with the particular
subject. 
 “Successor Guarantee Trustee” means a successor Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.1. 
 “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.

 “Trust Securities” means the Common Securities and the Preferred Securities. 
 ARTICLE II 
 TRUST INDENTURE ACT 

 SECTION 2.1 Trust Indenture Act; Application 
 This Guarantee is not subject to the provisions of the Trust Indenture Act. 
 SECTION 2.2 Lists of Holders of
Securities; Guarantee Trustee as Creditor 
 (a) The Guarantor shall provide the Guarantee Trustee (unless the Guarantee Trustee is
otherwise the registrar of the Preferred Securities) with a list, in such form as the Guarantee Trustee may reasonably require, of the names and addresses of the Holders of the Preferred Securities (“List of Holders”) as of such date,
(i) within one Business Day after December 15 and June 15 of each year, and (ii) at any other time within 30 days of receipt by the Guarantor of 

  

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a written request for a List of Holders as of a date no more than 14 days before such List of Holders is given to the Guarantee Trustee; provided, that the
Guarantor shall not be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Guarantee Trustee by the Guarantor. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders. 
 (b) Subject to the provisions of subsection (c) of this section
2.2, if the Guarantee Trustee shall be, or shall become, a creditor, directly or indirectly, secured or unsecured, of the Guarantor, within three months prior to any failure to make payment in full of any Guarantee payment under this Guarantee, or
subsequent to such a default, then, unless and until such default shall be cured, the Guarantee Trustee shall set apart and hold in a special account for the benefit of the Guarantee Trustee individually and the Holders: 
 (1) An amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest, effected
after the beginning of such three months’ period and valid as against Guarantor and its creditors, except any such reduction resulting from the receipt or disposition of any property described in paragraph (2) of this subsection, or from
the exercise of any right of set-off which the Guarantee Trustee could have exercised if a petition in bankruptcy had been filed by or against Guarantor upon the date of such default. 
 (2) All property received in respect of any claim as such creditor, either as security therefor, or in satisfaction or compromise thereof, or otherwise,
after the beginning of such three months’ period, of an amount equal to the proceeds or any such property, if disposed of, subject, however, to the rights, if any, of Guarantor and its other creditors in such property or such proceeds.

 (3) Nothing herein contained shall affect the right of the Guarantee Trustee: 
 (A) To retain for its own account (a) payments made on account of any such claim by any person (other than Guarantor) who is liable thereon, and
(b) the proceeds of the bona fide sale of any such claim by the Guarantee Trustee to a third person, and (c) distributions made in cash, securities, or other property in respect of claims filed against Guarantor in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable state law; 
 (B) To realize, for its
own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such three-months’ period; 
 (C) To realize, for its own account, but only to the extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was created after the beginning of such three
months’ period and such property was received as security therefor simultaneously with the creation thereof, and if the Guarantee Trustee shall sustain the burden of proving that at the time such property was so received the Guarantee Trustee
had no reasonable cause to believe that a default would occur within three months; or 
  

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 (D) To receive payment on any claim referred to in paragraph (B) or (C), against the release of
property held as security for such claim as provided in paragraph (B) or (C), as the case may be, to the extent of the fair value of such property. 
 For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of such three-months’ period for property held as security at the time of such substitution shall, to the extent of
the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or in substitution for or for the purpose of repaying or
refunding any preexisting claim of the Guarantee Trustee as such creditor, such claim shall have the same status as such preexisting claim. 
 (4) If the Guarantee Trustee shall be required to account for any Securities held, the funds and property held in such special account and the proceeds thereof shall be apportioned between the Guarantee Trustee and the Holders in such
manner that the Guarantee Trustee and the Holders realize, as a result of payments from such special account and payments of dividends on claims filed against the Guarantor in bankruptcy or receivership or in proceedings for reorganization pursuant
to the Federal Bankruptcy Act or applicable state law, the same percentage of their respective claims, figured before crediting to the claim of the Guarantee Trustee anything on account of the receipt by it from such obligor of the funds and
property in such special account and before crediting to the respective claims of the Guarantee Trustee and the Holders dividends on claims filed against the Guarantor in bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable state law, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in
such special account. As used in this paragraph, with respect to any claim, the term “dividends” shall include any distributions with respect to such claim, in bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable state law, whether such distribution is made in cash, securities, or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceeding for reorganization is pending shall have jurisdiction (i) to apportion between the Guarantee Trustee and the Holders, in accordance with the provisions of this paragraph, the funds and property held in
such special account and the proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to the provisions of this paragraph due consideration in determining the fairness of the distributions to be made to the
Guarantee Trustee and the Holders with respect to their respective claims, in which event it shall not be necessary to liquidate or to appraise the value of any securities or other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the secured and unsecured portions of such claims, or otherwise to apply the provisions of this paragraph as a mathematical formula. 
  

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 (5) Any Guarantee Trustee who has resigned or been removed after the beginning of such three months’
period shall be subject to the provisions of this subsection as though such resignation or removal had not occurred. Any Guarantee Trustee who has resigned or been removed prior to the beginning of such three months’ period shall be subject to
the provisions of this subsection if and only if the following conditions exist (i) the receipt of property or reduction of claim which would have given rise to the obligation to account, if such Guarantee Trustee had continued as trustee,
occurred after the beginning of such three-months’ period; and (ii) such receipt of property or reduction of claim occurred within three months after such resignation or removal. 
 (c) Creditor relationships arising from the following shall be excluded from the provisions of 2.2(b): 
 (1) The ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time
of acquisition by the Guarantee Trustee; 
 (2) Advances authorized by a receivership or bankruptcy court of competent jurisdiction for the
purpose of discharging tax liens or other prior liens or encumbrances on the trust estate, if notice of such advance and of the circumstances surrounding the making thereof is given to the Holders; 
 (3) Disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying
agent, fiscal agent or depositary, or other similar capacity; 
 (4) An indebtedness created as a result of services rendered or premises
rented; or an indebtedness created as a result of goods or securities sold in a cash transaction; 
 (5) The ownership of stock or of other
securities of a corporation organized under the provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Guarantor upon the Trust Securities; or 
 (6) The acquisition, ownership, acceptance, or negotiation of any drafts, bills of exchange, acceptances, or obligations which fall within the
classification of self-liquidating paper. 
 (d) Within five Business Days after the receipt by the Guarantee Trustee of a written
application by three or more Holders stating that the applicants desire to communicate with other holders of Preferred Securities with respect to their rights under such Guarantee or under the Preferred Securities, and accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit, and by reasonable proof that each such applicant has owned a Preferred Security for a period of at least six months preceding the date of such application, such
Guarantee Trustee shall, at its election, either: 
 (1) Afford to such applicants access to all information so furnished to or received by
the Guarantee Trustee; or 
  

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 (2) Inform such applicants as to the approximate number of Holders according to the most recent
information so furnished to or received by the Guarantee Trustee, and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application. 
 If the Guarantee Trustee shall elect not to afford to such applicants access to such information, the Guarantee Trustee shall, upon the written request
of such applicants, mail to all such Holders copies of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Guarantee Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing, unless within five Business Days after such tender, the Guarantee Trustee shall mail to such applicants, a written statement to the effect that, in the opinion of the Guarantee
Trustee, such mailing would be contrary to the best interests of the Holders, or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. 
 SECTION 2.3 Reports by the Guarantee Trustee 
 (a) Within 60 days after July 1 of each
year, commencing July 1, 2009, the Guarantee Trustee shall provide to the Holders a brief report with respect to any of the following events which may have occurred within the previous 12 months (but if no such event has occurred within such
period no report need be transmitted): 
 (1) The character and amount of any advances made by it, as Guarantee Trustee, which remain unpaid
on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Preferred Securities, on the trust estate or on property or funds held or collected by it as the Guarantee Trustee, if such
advances so remaining unpaid aggregate more than one-half of one per centum of the principal amount of the Preferred Securities outstanding on such date; 
 (2) Any change to the amount, interest rate, and maturity date of all other indebtedness owning to it in its individual capacity, on the date of such report, by the Guarantor, with a brief description of any property
held as collateral security therefor, except an indebtedness based upon a creditor relationship arising in any manner described in Section 2.2(b)(3)(B), (C) or (D); 
 (3) Any change to the property and funds physically in its possession as Guarantee Trustee on the date of such report; 
 (4) Any additional issue of Preferred Securities which it has not previously reported; and 
  

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 (5) Any action taken by it in the performance of its duties under the Guarantee which it has not
previously reported and which in its opinion materially affects the Preferred Securities or the trust estate. 
 (b) The Guarantee Trustee
shall transmit to the Holders a brief report with respect to the character and amount of any advances made by it as such since the date of the last report transmitted pursuant to the provisions of subsection (a) (or if no such report has yet
been so transmitted, since the date of execution of the Guarantee), for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Preferred Securities, on the trust estate or on property or funds held or collected by
it as such Guarantee Trustee, and which it has not previously reported pursuant to this paragraph, if such advances remaining unpaid at any time aggregate more than 10 per centum of the principal amount of Preferred Securities outstanding at
such time, such report to be so transmitted within 90 days after such time. 
 (c) Reports pursuant to this section shall be transmitted by
mail: 
 (1) To all registered holders of Preferred Securities, as the names and addresses of such Holders appear upon the registration books
of the Issuer; and 
 (2) To such holders of Preferred Securities as have, within the two years preceding such transmission, filed their
names and addresses with the Guarantee Trustee for that purpose. 
 SECTION 2.4 Periodic Reports to Guarantee Trustee 
 (a) The Guarantor shall: 
 (1) File with the
Guarantee Trustee copies of the annual reports and of the information, documents and other reports which the Guarantor is required to file with the Securities and Exchange Commission or delivery to its shareholders. Delivery of such reports,
information and documents to the Guarantee Trustee is for informational purposes only and the Guarantee Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information
contained therein, including the Guarantor’s compliance with any of its covenants hereunder (as to which the Guarantee Trustee is entitled to conclusively rely exclusively on Officers’ Certificates); 
 (2) File with the Guarantee Trustee, such additional information, documents, and reports with respect to compliance by the Guarantor with the conditions
and covenants provided for in the Guarantee, as may be required by such rules and regulations, including, in the case of annual reports, if required by such rules and regulations, certificates or opinions of independent public accountants,
conforming to the requirements of subsection (c) of this section, as to compliance with conditions or covenants, compliance with which is subject to verification by accountants, but no such certificate or opinion shall be required as to any
matter specified in clauses (A), (B), or (C) of Section 2.4(b)(3); 
  

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 (3) Transmit to the Holders, in the manner and to the extent provided, such summaries of any information,
documents, and reports required to be filed by the Guarantor pursuant to the provisions of this Section 2.4(a); and 
 (4) Furnish to
the Guarantee Trustee, not less than annually, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Guarantor’s compliance with all conditions
and covenants under the Guarantee. For purposes of this paragraph, such compliance shall be determined without regard to any period of grace or requirement of notice provided under the Guarantee. 
 (b) Upon the request of the Guarantee Trustee, the Guarantor shall furnish to the Guarantee Trustee evidence of compliance with the conditions precedent,
if any, provided for in the Guarantee (including any covenants compliance with which constitutes a condition precedent) which relate to the satisfaction and discharge of the Guarantee, or to any other action to be taken by the Guarantee Trustee at
the request or upon the application of such obligor. Such evidence shall consist of the following: 
 (1) Certificates or opinions made by
officers of the Guarantor who are specified in the Guarantee, stating that such conditions precedent have been complied with; 
 (2) An
opinion of counsel (who may be of counsel of the Guarantor) stating that in his opinion such conditions precedent have been complied with; and 
 (3) In the case of conditions precedent compliance with which is subject to verification by accountants (such as conditions with respect to the preservation of specified ratios, the amount of net quick assets, negative-pledge clauses, and
other similar specific conditions), a certificate or opinion of an accountant. No certificate or opinion need be made by any person other than an officer or employee of the Guarantor who is specified in the Guarantee, as to (A) dates or periods
not covered by annual reports required to be filed by the Guarantor, in the case of conditions precedent which depend upon a state of facts as of a date or dates or for a period or periods different from that required to be covered by such annual
reports, or (B) the amount and value of property additions, or (C) the adequacy of depreciation, maintenance or repairs. 
 (c)
Each certificate or opinion with respect to compliance with a condition or covenant provided for in the Guarantee (other than certificates provided pursuant to subsection (a)(4) of this section) shall include (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. 
  

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 SECTION 2.5 Evidence of Compliance with Conditions Precedent 
 The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Guarantee
that relate to any of the matters set forth in Section 2.4 hereof. Any certificate or opinion required to be given by an officer pursuant to Section 2.4 hereof may be given in the form of an Officers’ Certificate. 
 SECTION 2.6 Events of Default; Waiver 
 The
Holders of a Majority in liquidation amount of Preferred Securities may, by vote, on behalf of the Holders of all of the Preferred Securities, waive any past Event of Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent
thereon. 
 SECTION 2.7 Event of Default; Notice 
 (a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default with respect to this Guarantee known to a Responsible Officer of the Guarantee Trustee, mail by first class postage prepaid,
to all Holders of the Preferred Securities, notices of all defaults actually known to a Responsible Officer of the Guarantee Trustee, unless such defaults have been cured before the giving of such notice, provided, that, except in the case of
default in the payment of any Guarantee Payment, the Guarantee Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or Responsible Officers of
the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Preferred Securities. 
 (b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless the Guarantee Trustee shall have received written notice, or a Responsible Officer of the Guarantee Trustee charged with the administration of
the Trust Agreement shall have obtained actual knowledge, of such Event of Default. 
 ARTICLE III 
 POWERS, DUTIES AND RIGHTS OF 
 GUARANTEE TRUSTEE 
 SECTION 3.1 Powers and Duties of the Guarantee Trustee 
 (a) This Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders of the Preferred Securities, and the Guarantee Trustee shall not
transfer this Guarantee to any Person except a Holder of Preferred Securities exercising his or her rights pursuant to Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to
act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall automatically vest in any Successor Guarantee Trustee, and such vesting and succession of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. 
  

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 (b) If an Event of Default actually known to a Responsible Officer of the Guarantee Trustee has occurred
and is continuing, the Guarantee Trustee shall enforce this Guarantee for the benefit of the Holders of the Preferred Securities. 
 (c) The
Guarantee Trustee, before the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Guarantee, and no implied
covenants shall be read into this Guarantee against the Guarantee Trustee. In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6) and is actually known to a Responsible Officer of the Guarantee
Trustee, the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs. 
 (d) No provision of this Guarantee shall be construed to relieve the Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: 
 (i) prior to the occurrence of
any Event of Default and after the curing or waiving of all such Events of Default that may have occurred: 
 (A) the duties and obligations
of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee, and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee,
and no implied covenants or obligations shall be read into this Guarantee against the Guarantee Trustee; and 
 (B) in the absence of bad
faith or gross negligence on the part of the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the
Guarantee Trustee and conforming to the requirements of this Guarantee; 
 (ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; 
 (iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a Majority in liquidation amount of the Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee; and 
  

 12 







 (iv) no provision of this Guarantee shall require the Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee or indemnity, satisfactory to the Guarantee Trustee, against such risk or liability is not reasonably assured to it. 
 SECTION 3.2 Certain Rights of Guarantee Trustee 
 (a) Subject to the provisions of Section 3.1: 
 (i) The Guarantee Trustee may conclusively rely, and shall be fully protected
in acting or refraining from acting, upon any resolution, certificate, statement instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or presented by the proper party or parties. 
 (ii) Any direction or act of the Guarantor
contemplated by this Guarantee may be sufficiently evidenced by an Officers’ Certificate. 
 (iii) Whenever, in the administration of
this Guarantee, the Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in
the absence of bad faith or willful misconduct on its part, request and conclusively rely upon an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Guarantor. 
 (iv) The Guarantee Trustee shall have no duty to see to any recording, filing or registration of any instrument (or any rerecording, refiling or
registration thereof). 
 (v) The Guarantee Trustee may consult with counsel of its selection, and the advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any of its employees. The Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Guarantee from any court of competent jurisdiction.

 (vi) The Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee at the
request or direction of any Holder, unless such Holder shall have provided to the Guarantee Trustee such security and indemnity, satisfactory to the Guarantee Trustee, against the costs, expenses (including attorneys’ fees and expenses and the
expenses of the Guarantee Trustee’s agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Guarantee Trustee;
provided that, nothing 

  

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contained in this Section 3.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Guarantee. 
 (vii) The Guarantee Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Guarantee
Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. 
 (viii) The
Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, nominees, custodians or attorneys, and the Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it hereunder. 
 (ix) Any action taken by the Guarantee Trustee or
its agents hereunder shall bind the Holders of the Preferred Securities, and the signature of the Guarantee Trustee or its agents alone shall be sufficient and effective to perform any such action. No third party shall be required to inquire as to
the authority of the Guarantee Trustee to so act or as to its compliance with any of the terms and provisions of this Guarantee, both of which shall be conclusively evidenced by the Guarantee Trustee’s or its agent’s taking such action.

 (x) Whenever in the administration of this Guarantee, the Guarantee Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action hereunder, the Guarantee Trustee (i) may request and shall be entitled to receive, instructions from the Holders of a Majority in liquidation amount of the Preferred Securities,
(ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be fully protected in conclusively relying on or acting in accordance with such instructions.

 (xi) The Guarantee Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith, without
negligence, and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Guarantee. 
 (b) No provision of this Guarantee shall be deemed to impose any duty or obligation on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which
it shall be illegal, or in which the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority
available to the Guarantee Trustee shall be construed to be a duty. 
  

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 SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee 
 The recitals contained in this Guarantee shall be taken as the statements of the Guarantor, and the Guarantee Trustee does not assume any responsibility
for their correctness. The Guarantee Trustee makes no representation as to the validity or sufficiency of this Guarantee. 
 ARTICLE IV

 GUARANTEE TRUSTEE 
 SECTION
4.1 Appointment, Removal and Resignation of Guarantee Trustee 
 (a) Subject to Section 4.1(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor except during an Event of Default. 
 (b) The Guarantee Trustee shall not be
removed in accordance with Section 4.1(a) until a Successor Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor. 
 (c) The Guarantee Trustee shall hold office until a Successor Guarantee Trustee shall have been appointed or until its removal or resignation. The
Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing executed by the Guarantee Trustee and delivered to the Guarantor, which resignation shall not take effect until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by instrument in writing executed by such Successor Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee Trustee. 
 (d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.1 within 60 days after
delivery of an instrument of removal or resignation, the Guarantee Trustee resigning or being removed may petition, at the expense of the Guarantor, any court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee. 
 (e) No Guarantee Trustee
shall be liable for the acts or omissions to act of any Successor Guarantee Trustee. 
 (f) Upon termination of this Guarantee or removal or
resignation of the Guarantee Trustee pursuant to this Section 4.1, the Guarantor shall pay to the Guarantee Trustee all amounts due to the Guarantee Trustee accrued to the date of such termination, removal or resignation. 
 SECTION 4.2 Guarantee Trustee; Eligibility 
 (a) There shall at all times be a Guarantee Trustee which shall: 
 (i) not be an Affiliate of the Guarantor; and 
  

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 (ii) be a corporation organized and doing business under the laws of the United States or any State
thereof, authorized to exercise corporate trust powers, having a combined capital and surplus of at least fifty million dollars ($50,000,000), subject to supervision or examination by Federal or State authority and having an office within the United
States. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of such supervising or examining authority, then, for the purposes of this Section 4.2, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. 
 (b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.2(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.1(c). 
 (c) If the Guarantee Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture
Act, the Guarantee Trustee shall either eliminate such interest or resign in the manner and with the effect set out in Section 4.1(c). 
 ARTICLE V 
 GUARANTEE 
 SECTION 5.1 Guarantee 
 The Guarantor irrevocably and unconditionally agrees to pay in full on a subordinated basis to
the extent set forth in this Guarantee to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by or on behalf of the Issuer), as and when due, regardless of any defense (except for the defense of payment by the
Issuer), right of set-off or counterclaim that the Issuer may have or assert. The Guarantor’s obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the
Issuer to pay such amounts to the Holders. The Guarantors shall notify the Guarantee Trustee of any such payment in writing. 
 SECTION 5.2 Waiver of
Notice and Demand 
 The Guarantor hereby waives notice of acceptance of this Guarantee and of any liability to which it applies or
may apply, presentment, demand for payment, any right to require a proceeding first against the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of prepayment and all other
notices and demands. 
  

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 SECTION 5.3 Obligations Not Affected 
 The obligations, covenants, agreements and duties of the Guarantor under this Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following: 
 (a) the release or waiver, by operation of law or otherwise, of the performance or observance by
the Issuer of any express or implied agreement, covenant, term or condition relating to the Preferred Securities to be performed or observed by the Issuer; 
 (b) the extension of time for the payment by the Issuer of all or any portion of the Distributions, Prepayment Price, Liquidation Distribution or any other sums payable under the terms of the Preferred Securities or
the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Preferred Securities (other than an extension of time for payment of Distributions, Prepayment Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period on the Notes permitted by the Indenture); 
 (c) any
failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Preferred Securities, or any action on the part of
the Issuer granting indulgence or extension of any kind; 
 (d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Issuer or any of the assets of the Issuer;

 (e) any invalidity of, or defect or deficiency in, the Preferred Securities; 
 (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or 
 (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor with respect to the Guarantee Payments shall be absolute and unconditional under any and all circumstances. 
 There shall be no obligation of the Holders to give notice to, or obtain consent of, the Guarantor with respect to the happening of any of the foregoing. 
 SECTION 5.4 Rights of Holders 
 (a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of this Guarantee or exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee. 
  

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 (b) If the Guarantee Trustee fails to enforce such Guarantee, any Holder of Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce the Guarantee Trustee’s rights under this Guarantee, without first instituting a legal proceeding against the Issuer, the Guarantee Trustee or any other person or entity.
The Guarantor waives any right or remedy to require that any action be brought first against the Issuer or any other person or entity before proceeding directly against the Guarantor. 
 SECTION 5.5 Guarantee of Payment 
 This Guarantee creates a guarantee of payment and not of
collection. 
 SECTION 5.6 Subrogation 
 The Guarantor shall be subrogated to all (if any) rights of the Holders of Preferred Securities against the Issuer in respect of any amounts paid to such Holders by the Guarantor under this Guarantee; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Guarantee, if, at the time of any such payment, any amounts are due and unpaid under this Guarantee. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust
for the Holders and to pay over such amount to the Holders. 
 SECTION 5.7 Independent Obligations 
 The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer with respect to the Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of
Section 5.3 hereof. 
 ARTICLE VI 
 LIMITATION OF TRANSACTIONS; SUBORDINATION 
 SECTION 6.1 Limitation of Transactions 
 So long as any Preferred Securities remain outstanding, the Guarantor shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the Guarantor’s capital stock (which includes common and preferred stock) or (ii) make any payment of principal, interest or premium, if any, on, or repay or
repurchase or redeem any debt securities of the Guarantor (including any Other Notes) that rank pari passu with or junior in right of payment to the Notes or (iii) make any guarantee 

  

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payments with respect to any guarantee by the Guarantor of the debt securities of any subsidiary of the Guarantor (including Other Guarantees) if such
guarantee ranks pari passu or junior in right of payment to the Notes (other than (a) dividends or distributions in shares of, or options, warrants, rights to subscribe for or purchase shares of, common stock of the Guarantor, (b) any
declaration of a dividend in connection with the implementation of a stockholder’s rights plan, or the issuance of stock under any such plan in the future, or the prepayment or repurchase of any such rights pursuant thereto, (c) payments
under the Guarantee, (d) as a result of a reclassification of the Guarantor’s capital stock or the exchange or the conversion of one class or series of the Guarantor’s capital stock for another class or series of the Guarantor’s
capital stock, (e) the purchase of fractional interests in shares of the Guarantor’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, and (f) purchases
or issuances of common stock in connection with any of the Guarantor’s stock option, stock purchase, stock loan or other benefit plans for its directors, officers or employees or any of the Guarantor’s dividend reinvestment plans, in each
case as now existing or hereafter established or amended), if at such time (i) there shall have occurred any event of which the Guarantor has actual knowledge that (a) is, or with the giving of notice or the lapse of time, or both, would
be an Event of Default and (b) in respect of which the Guarantor shall not have taken reasonable steps to cure, (ii) if such Notes are held by the Property Trustee, the Guarantor shall be in default with respect to its payment of any
obligations under this Guarantee or (iii) the Guarantor shall have given notice of its election of the exercise of its right to extend the interest payment period pursuant to Section 16.01 of the Indenture and any such extension shall be
continuing. 
 SECTION 6.2 Ranking 
 This Guarantee will constitute an unsecured obligation of the Guarantor and will rank (i) subordinate and junior in right of payment to Senior Debt (as defined in the Indenture), to the same extent and in the same manner that the Notes
are subordinated to Senior Debt pursuant to the Indenture (except as indicated below), it being understood that the terms of Article XV of the Indenture shall apply to the obligations of the Guarantor under this Guarantee as if (x) such Article
XV were set forth herein in full and (y) such obligations were substituted for the term “Securities” appearing in such Article XV, except that with respect to Section 15.03 of the Indenture only, the term “Senior Debt”
shall mean all liabilities of the Guarantor, whether or not for money borrowed (other than obligations in respect of Other Guarantees), (ii) pari passu with any Other Guarantee (as defined herein) and (iii) senior to any obligations in
respect of any class of the Guarantor’s capital stock. 
 ARTICLE VII 
 TERMINATION 
 SECTION 7.1 Termination 
 This Guarantee shall terminate and be of no further force and effect (i) upon full payment of the Prepayment Price (as defined in the Amended and
Restated Trust Agreement) of all 

  

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Preferred Securities, or (ii) upon liquidation of the Issuer, the full payment of the amounts payable in accordance with the Trust Agreement or the
distribution of the Notes to the Holders of all of the Preferred Securities. Notwithstanding the foregoing, this Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any Holder of Preferred Securities
must restore payment of any sums paid under the Preferred Securities or under this Guarantee. 
 ARTICLE VIII 
 INDEMNIFICATION 
 SECTION 8.1 Exculpation

 (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Guarantor or any Covered
Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith in accordance with this Guarantee and in a manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this Guarantee or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person’s negligence
or willful misconduct with respect to such acts or omissions. 
 (b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Guarantor and upon such information, opinions, reports or statements presented to the Guarantor by any Person as to matters the Indemnified Person reasonably believes are within such other Person’s professional or expert
competence and who has been selected with reasonable care by or on behalf of the Guarantor, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent
to the existence and amount of assets from which Distributions to Holders of Preferred Securities might properly be paid. 
 SECTION 8.2
Indemnification 
 The Guarantor agrees to indemnify each Indemnified Person for, and to hold each Indemnified Person harmless
against, any and all loss, liability, damage, claim or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs
and expenses (including reasonable legal fees and expenses) of defending itself against, or investigating, any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligation to indemnify as
set forth in this Section 8.2 shall survive the termination of this Guarantee. 
  

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 ARTICLE IX 
 MISCELLANEOUS 
 SECTION 9.1 Successors and Assigns 
 All guarantees and agreements contained in this Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and
shall inure to the benefit of the Holders of the Preferred Securities then outstanding. 
 SECTION 9.2 Amendments 
 Except with respect to any changes that do not materially adversely affect the rights of Holders (in which case no consent of Holders will be required),
this Guarantee may be amended only with the prior approval of the Holders of a Majority in liquidation amount of the Securities (including the stated amount that would be paid on prepayment, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined). The provisions of Section 12.2 of the Trust Agreement with respect to meetings of Holders of the Securities apply to the giving of such approval. 
 SECTION 9.3 Notices 
 All notices provided for
in this Guarantee shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, as follows: 
 (a) If given to the Issuer, in care of the Administrative Trustee at the Issuer’s mailing address set forth below (or such other address as the Issuer may give notice of to the Holders of the Common Securities):

  

					
		 	 Nexity Capital Trust III
 c/o Nexity Financial
Corporation
 3500 Blue Lake Drive, Suite 330
 Birmingham, Alabama
35243
 Attn: John J. Moran
 Telecopier:
(843) 213-0788
	 	

 (b ) If given to the Guarantee Trustee, at the Guarantee Trustee’s mailing address set forth
below (or such other address as the Guarantee Trustee may give notice of to the Holders of the Preferred Securities): 
  

					
		 	 Wilmington Trust Company
 Rodney Square North

1100 North Market Street
 Wilmington, Delaware 19890
 Attn: Corporate Trust Administration
 Telecopier:
(302) 636-4140
	 	

  

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 (c) If given to the Guarantor, at the Guarantor’s mailing address set forth below (or such other
address as the Guarantor may give notice of to the Holders of the Preferred Securities): 
  

					
		 	 Nexity Financial Corporation
 3500 Blue Lake Drive, Suite
330
 Birmingham, Alabama 35243
 Attn: John J. Moran
 Telecopier: (843) 213-0788
	 	

 (d) If given to any Holder of Preferred Securities, at the address set forth on the books and
records of the Issuer. 
 All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver. 
 SECTION 9.4 Benefit 
 This Guarantee is solely for the benefit of the Holders of the Preferred Securities and is not separately transferable from the Preferred Securities.

 SECTION 9.5 Governing Law 
 THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ALABAMA, PROVIDED, HOWEVER, THAT THE RIGHTS (INCLUDING, WITHOUT LIMITATION, INDEMNIFICATION RIGHTS), DUTIES, STANDARDS OF CARE, QUALIFICATIONS, PROTECTIONS,
PRIVILEGES AND IMMUNITIES OF THE TRUSTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE IN WHICH THE CORPORATE TRUST OFFICE IS LOCATED. 
 SECTION 9.6 Counterparts 
 This Guarantee may be executed in one or more counterparts, which
shall together constitute a valid and binding agreement. 
  

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 THIS Guarantee is executed as of the day and year first above written. 
  

			
	NEXITY FINANCIAL CORPORATION,
	as Guarantor
		
	By:	 	  

	Printed Name:	 	  

	Its:	 	  

	
	WILMINGTON TRUST COMPANY, as Guarantee Trustee
		
	By:	 	  

	Printed Name:	 	  

	Its:	 	  



  

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